Twitch Interactive, Inc. v. Solimul Hasan Khan
Claim Number: FA2103001935907
Complainant is Twitch Interactive, Inc. ("Complainant"), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is Solimul Hasan Khan ("Respondent"), Bangladesh.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <twitchsupport.com> and <twitchsupport.net>, registered with NameCheap, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 9, 2021; the Forum received payment on March 9, 2021.
On March 9, 2021, NameCheap, Inc. confirmed by email to the Forum that the <twitchsupport.com> and <twitchsupport.net> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On March 10, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 30, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@twitchsupport.com, postmaster@twitchsupport.net. Also on March 10, 2021, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On March 31, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules, and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant operates a popular social video service for gamers. The service launched in 2011 and currently ranks as the 21st most viewed website in the United States and 34th globally, with more than 30 million average daily users. Complainant uses the TWITCH mark in connection with this service, and claims that the mark has become famous through longstanding use, promotion, and commercial success (and that it became famous prior to Respondent's registration of the disputed domain names). Complainant owns various United States trademark registrations for TWITCH in standard character form and otherwise.
Respondent registered <twitchsupport.com> in October 2019 and <twitchsupport.net> in January 2021; both domain name registrations are held in the name of a privacy registration service. The domain name <twitchsupport.com> formerly was used to sell overlay graphics to be used with Complainant's service or other, competing streaming platforms; it currently resolves to a page entitled "Twitch Support" that offers the domain name for sale for $1 million. The domain name <twitchsupport.net> resolves to a parked page composed of "related links" to other websites. Complainant states that it was contacted by Respondent in February 2021, with an offer to transfer the <twitchsupport.com> domain name to Complainant. Following further correspondence, however, Respondent demanded $100,000 for the two domain names. Complainant states further that Respondent is not commonly known by the disputed domain names, is not licensed to use Complainant's mark, and is not an authorized vendor, supplier, or distributor of Complainant's goods and services.
Complainant contends on the above grounds that the disputed domain names <twitchsupport.com> and <twitchsupport.net> are confusingly similar to its TWITCH mark; that Respondent lacks rights or legitimate interests in the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a), and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
Both of the disputed domain names, <twitchsupport.com> and <twitchsupport.net>, incorporate Complainant's registered TWITCH trademark, adding the generic term "support" and the ".com" or "net" top-level domain. These additions do not substantially diminish the similarity between the domain names and Complainant's mark. See, e.g., Amazon Technologies, Inc. & Twitch Interactive, Inc. v. Prateek Kapoor / Callspartner, FA 1774982 (Forum May 24, 2018) (finding <btsupport.com> and <btsupport.net> confusingly similar to BT); British Telecommunications, plc v. Compulab Ltd., D2007-1803 (WIPO Feb. 13, 2008) (finding <twitchtvactivate.com> and <amazonsupportz.com> confusingly similar to TWITCH and AMAZON). The Panel considers both of the disputed domain names to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain names incorporate Complainant's registered mark without authorization. They have been used to promote competing services, to display unrelated pay-per-click links, and to offer one of the domain names for sale. None of these uses are likely to give rise to rights or legitimate interests under the Policy. See, e.g., HDR Global Trading Ltd. v. Yuying Lin, FA 1908394 (Forum Sept. 21, 2000) (competing services and pay-per-click links); United Services Automobile Ass'n v. Cyan Yo, FA 1931638 (Forum Mar. 15, 2021) (offering domain name for sale).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain names, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.
Finally, Complainant must show that the disputed domain names were registered and are being used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name." Under paragraph 4(b)(iii), bad faith may be shown by evidence that Respondent registered a disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent used a privacy registration service to register two domain names incorporating and presumably calculated to create confusion with Complainant's well-known mark. Respondent subsequently reached out to Complainant in an effort to sell the domain names for a price far in excess Respondent's out-of-pocket costs. Respondent has also used one of the domain names to promote competing services and to promote the domain name itself for sale, and the other to display pay-per-click links. Respondent's conduct is indicative of bad faith registration and use under the provisions of the Policy described above. See, e.g., HDR Global Trading Ltd. v. Yuying Lin, supra (use of domain name to promote competing services and display pay-per-click links); United Services Automobile Ass'n v. Cyan Yo, supra (use of privacy registration service; offering domain name for sale). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <twitchsupport.com> and <twitchsupport.net> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 1, 2021
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